Mathy-Ann Rudkins v. Durham Catholic District School Board and Sun Life Assurance Company of Canada, 2014 HRTO 1098

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mathy-Ann Rudkins

Applicant

-and-

Durham Catholic District School Board and Sun Life Assurance Company of Canada

Respondents

DECISION

Adjudicator: Kathleen Martin

Date: July 25, 2014

Citation: 2014 HRTO 1098

Indexed as: Rudkins v. Durham Catholic District School Board

APPEARANCES

Mathy-Ann Rudkins, Applicant

Jerry Raso, Counsel

Durham Catholic District School Board and Sun Life Assurance Company of Canada

Dolores M. Barbini, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment and services. The applicant, a teacher, alleges that she has been discriminated against on the basis of marital status and family status by being denied certain benefits which the applicant states she is entitled to pursuant to her employment. The respondents are the applicant’s employer, the Durham Catholic District School Board (the “Board”), and Sun Life, the insurance company that administers the benefits provided by the Board to teachers.

2The applicant is married to another teacher employed by the Board. The applicant and her spouse have two children. Under the terms of the policy with Sun Life, a person cannot be insured for health and dental benefits as both an employee and a dependent, and a child cannot be considered to be a dependent of more than one employee for health and dental benefits. The parties referred to this as a prohibition on the “internal coordination” of benefits.

3In the case of Board employees who are spouses, three options are available: each employee maintains single coverage; one employee maintains family coverage for themselves, their spouse and eligible children and the other employee declines coverage; or one employee maintains single coverage and the other elects family coverage for themselves and their children.

4In this case, the applicant selected the second option and the Application is based on the applicant’s allegation that her inability to access family coverage (because her spouse already maintains family coverage) is discriminatory on the basis of marital status and family status.

5The respondents dispute that Sun Life is a proper party to the Application given that it is not an insurer but only an administrator of the plan. In these circumstances, the respondents submit that Sun Life cannot be legally liable for any alleged breach and should be removed as a party.

6With respect to the merits, the respondents dispute that the applicant has been discriminated against on the basis of either marital status or family status. Among other things, the respondents note that six arbitrators and the B.C. Court of Appeal have addressed the same issue as in this case and with one exception have not found a prohibition on internal coordination of benefits to be discriminatory.

7After carefully considering the issue, I have reached a similar conclusion for reasons outlined below. As a result of this conclusion, I do not find it necessary to determine whether or not Sun Life is a proper party.

The Proceeding

8The Application was heard in a two-day hearing. On the first day of hearing, the parties reached an agreed statement of facts inclusive of certain exhibits, the full text of which is set out below.

9In addition, at the request of the parties, I agreed that my decision would be issued in respect of liability only. The parties agreed that, should I find that there has been a violation of the Code, they reserved their right to make further submissions on remedy, including whether the Tribunal should receive additional evidence relating to remedy.

10At the conclusion of the hearing, I heard oral submissions from the parties. As a result of the submissions made by the respondents on the test for discrimination, I offered the parties an opportunity to file additional written submissions on Quebec (Attorney General) v. A, 2013 SCC 5.

The Facts

11The Agreed Statement of Facts provides as follows (subject to anonymization of the names of minors consistent with Rule 3.11.1 of the Tribunal’s Rules of Procedure):

1. The Applicant is a teacher in the employ of the Respondent, Durham Catholic District School Board (“the School Board”.) She was born on December 25, 1967. She has been a full-time teacher with the School Board since September 1, 1994.

2. Ms. Rudkins is married to Terrance Andrew Rudkins. They were married on October 9, 1994. They have two children – [A.M.R.], born October 29, 2000, and [A.T.R.], born January 15, 2004.

3. Mr. Rudkins is also a teacher and employed with the School Board. Mr. Rudkins was born on May 30, 1967. He has been a full-time teacher with the School Board since September 1, 1995.

4. The employment of the Applicant is covered by a collective agreement (“collective agreement”) between the School Board and the secondary teachers employed by the School Board represented by the Ontario English Catholic Teachers’ Association (“OECTA”) [Ex 1]. The collective agreement requires that the School Board provide for the benefits which are the subject matter of this complaint – health and dental.

5. The School Board has entered into a [sic] Administrative Services Only contract [ex 2] with the Respondent, Sun Life Assurance Company of Canada (“Sun Life”), to administer the Benefit Plan (“Plan”) provided under Article 7 of the collective agreement [Ex 3]. Sun Life does not insure the benefits at issue in this Application. The School Board has sole legal and financial liability for payment of benefits that are the subject matter of this Application under the Plan. Sun Life is the School Board’s agent for adjudicating claims on behalf of the School Board. Sun Life adjudicates and processes payment to the Plan member on behalf of the School Board.

6. The terms of the Plan as they pertain to coverage levels and who will be covered by the plan, as set out in the “Your Group Benefits” document, are determined solely by the School Board, having regard to the terms of the collective agreement between the Applicant’s union and the School Board. These terms are not determined by Sun Life in any way. More specifically to this Application, it was the School Board’s sole decision to include in the insurance plan a term which disallowed the internal coordination of benefits. Sun Life did not participate in this decision, nor could it prevent the School Board from including this provision in the insurance plan.

7. The arrangement between the School Board and Sun Life is one of Administrative Services Only (ASO). The general principles are as follows:

• the employer purchases administrative services but not insurance from a carrier. Accordingly, the annual cost of the plan is the amount of paid claims, plus the administrator’s administration expenses and applicable taxes.

• The liability for incurred but unreported claims belongs to the employer, because there are no reserves held by the administrator.

8. Without prejudice to either parties’ position as to whether there is adequate funding or not, the School Board receives funding from the Ministry of Education to pay for the costs of the Benefit Plan (“Plan”) as well as contributions for other benefits including CPP, EHT, EI, retirement gratuities, WSIB, Sub-Plan and EAP.

9. If internal coordination were to be allowed, this would increase the School Board’s benefits costs.

10. There are two kinds of coordination of benefits – external and internal. External coordination exists where two spouses working for different employers have coverage under the respective employer’s plan of each. Internal coordination of benefits exists where two spouses work for the same employer and are covered by the same benefit plan.

11. The policy known as the external coordination of benefits was developed by the insurance industry. This scheme developed rules about which policy should pay the primary claim and which should pay the residual claim when two spouses were enrolled in a separate benefit plan.

12. The Plan which is the subject of this Application provides for the external coordination of benefits but not the internal coordination of benefits. The coordination of benefits rules are found in the Plan Booklet for the Board Benefits Plan at Tab 2, pages 6-8.

13. Members of the Plan are enrolled as either:

(a) a “single” member and are entitled to submit claims only for themselves or

(b) as a “family” member and are entitled to submit claims under the various Benefits Plans for themselves and/or for their “dependents”. “Dependent” is defined in the Booklet, at pages 2-3, as including “your spouse or your child and a resident of Canada or the United States.”

14. Eligibility for membership in the Plan in question as a subscriber is partly defined in the Plan Booklet, at pages 1-2 as:

To be eligible for group benefits, you must be a resident of Canada and meet the following conditions:

• you are a permanent employee.

• you are actively working for your employer.

• you have completed the waiting period.

15. The Applicant, Ms. Rudkins, meets the eligibility requirements of the Plan to be a family member/subscriber.

16. The School Board has accepted Ms. Rudkins as a member for the purpose of providing life insurance and accidental death and dismemberment.

17. By letter dated February 3, 2011 [Ex 4], the Board advised Ms. Rudkins that she would not be accepted into the Plan as a member for family coverage. She was refused on the basis that the Plan will not provide for the internal coordination of benefits (she is married to Terrance Rudkins who is also a member of the Plan with family coverage). As stated in the letter the clause on which they base their rejection of Ms. Rudkins as a member is:

A child may not be considered to be a dependent of more than one employee for health and dental benefits, nor may a person be insured for health and dental benefits as both an employee and a dependent. (The Plan Booklet at page 3).

18. The following extended health care and/or dental care options are available to employees where spouses are both Board employees:

• Each employee maintains single coverage; or

• One of the employees maintains family coverage for themselves, their spouse and eligible child(ren) and the other declines coverage; or

• One employee maintains single coverage and the other employee elects family coverage for themselves and their eligible dependent child(ren).

19. Example: a child incurs [sic] a orthodontic bill of $3,000.00. Under the Plan, the following scenarios are possible:

(a) a single parent would be reimbursed $1,500;

(b) an employee married to a spouse who doesn’t work would be reimbursed $1,500;

(c) an employee married to a spouse who works for an employer who does not provide benefits would be reimbursed $1,500;

(d) employee married to another employee would be reimbursed $1,500;

(e) an employee married to a spouse who works for an employer who has a benefit plan with less coverage would be reimbursed $1,500 plus whatever coverage the latter plan provides;

(f) an employee married to a spouse who works for an employer who provides benefits coverage similar to or better than the School Board would be reimbursed $3,000.

This is without prejudice to the Applicant’s position on relevance.

20. Twenty-seven or 28 of 29 Catholic District School Boards and 26 other District School Boards provide for internal coordination of benefits. There are 72 school boards in the province. The status of the remaining 17 School Boards is unknown. However, the overall benefit package, coverage levels and cost to employees may or may not be different. This is without prejudice to the Respondent’s position on relevance.

12With respect to the referenced collective agreement (Exhibit 1), Article 7 of the Collective Agreement sets out the language establishing the benefits in question. Among other things, Article 7 states that the details of the Benefit Plans are outlined in a booklet provided by the carrier, that benefits coverage shall be in accordance with the collective agreement and as described in the Secondary Teacher’s benefits booklet, that a joint committee of the Board and the Teachers will meet quarterly to discuss mutually agreeable modifications and that the Board shall contribute one hundred percent of the premiums for the employee benefits specified. The benefits include vision care (“maximum $200/annum for dependent children and $300 every two (2) years for adults…”) and a dental care plan (including “Preventative - $1,500/annum...” and “Orthodontic - $2500/lifetime (dependent children only)”.

13As provided for in Exhibit 4, the Board advised the applicant that she would not be accepted into the plan as a member for family coverage. In the course of that letter, the Board further explained its position as follows:

During recent discussions relating to the use of Ministry funding for employee benefits under the Provincial Framework Agreement, notwithstanding the significant cost, the Board advised all employee group representatives of a willingness to use part of the funding for the co-ordination of employee benefits. The employee groups chose not to do this but to exhaust such funding for other benefit enhancements. Neither the Collective Agreement nor the corollary benefits booklet provides for this kind of coverage for married employees of the Board. The coordination of benefits is an issue that while already exhausted in previous collective bargaining, always continues to be subject to future bargaining. Article 7 of the current Collective Agreement clearly indicates that existing benefit coverage shall be as described in the teachers’ benefit booklet. This particular benefit was the subject of the last round of contract negotiations and the parties mutually agreed to the state of affairs as we have them today. You should know that your Board is spending over and above existing Ministry funding for employee benefits.

The Parties’ Submissions

14The parties agreed that the onus is on the applicant to establish discrimination. However, as will be apparent from the summary below, the parties advanced different positions on the applicable test of discrimination and whether or not discrimination has been established in the circumstances set out in the Application.

15The applicant submits that the test for discrimination is as set out by the Supreme Court of Canada in Moore (Education) v. British Columbia, 2012 SCC 61 (followed by the Tribunal in MacKinnon v. Celtech Plastics Ltd., 2012 HRTO 2372) and that the applicant has been discriminated against in accordance with that test: namely the applicant has a characteristic protected from discrimination under the Code (family status and marital status); the applicant experienced an adverse impact with respect to the social area in question (in this case being disentitled to the benefits as a family subscriber thus engaging services (s. 1) and employment (s. 5)); and her marital status and family status are a factor or factors in the adverse impact.

16The applicant submits that the applicant is being treated differently not because she is married, but because of who she is married to (another teacher employed by the School Board). In this respect, the applicant relies on B. v. Ontario (Human Rights Commission), 2002 SCC 66 (“B.”), in support of the proposition that marital status and family status includes the specific identity of the spouse and/or family member. The applicant makes specific reference to the Court of Appeal decision in B. v. Ontario referenced at para. 29 of B. where Abella J. (then a judge at the Court of Appeal) framed the issue as “not whether the employee/father belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged based on a ground or grounds enumerated in s. 5(1) of the Code (para. 49)”.

17Further, the applicant submits that she has been arbitrarily disadvantaged. The applicant submits that “but for being married to her spouse”, she would be entitled to claim for her spouse and children. Anticipating the respondents’ argument, the applicant submits that this is not an undue advantage, as teachers who are married to people who have a benefit plan providing benefit coverage similar to or better than the School Board are allowed to claim for the spouses and children because of the policy providing for external coordination of benefits. Further, the applicant submits that as two employees, the applicant and her husband get two salaries and should be able to get the same benefit entitlements as both salary and benefits are part of the pay package. The applicant submits that the Tribunal should not focus on comparing the applicant to others but rather the focus should be on the entitlement and whether or not the applicant is subjected to an adverse impact because of her marital status.

18To the extent the respondents reference the other comparators in para. 19 of the Agreed Statement of Facts, the applicant states that if the Tribunal considers comparators, it should consider the global picture referenced at para. 20 of the Agreed Statement where a significant percentage of other school boards provide for internal coordination of benefits.

19In addressing the precedents on the issue, the applicant urges the Tribunal to follow the arbitration award in Calgary Roman Catholic Separate School District No. 1 and A.T.A., Loc. 55 (MacDonald) (Re) (1997), 1997 CanLII 25158 (AB GAA), 68 L.A.C. (4^th) 1 (Sims) and the minority judgement in B.C. Court of Appeal decision in B.C. Public School Employers’ Assn. v. B.C. Teachers’ Federation, 2003 BCCA 323. The arbitrator in Calgary Roman Catholic Separate School District No. 1 found that an employer’s refusal to allow a spouse of another employee to enroll in the benefit plan in his own right was discriminatory under Alberta’s Individual’s Rights Protection Act. The minority judgement in the B.C. Court of Appeal case found that the employer’s policy precluding a teacher from claiming benefits for his or her dependent children because the teacher is married to another teacher who was already claiming benefits for the same children was discriminatory. The applicant submits that the decisions relied upon by the Board and Sun Life apply an incorrect test for discrimination by requiring pre-existing disadvantage, stereotyping, prejudice or vulnerability to establish discrimination or by focussing on comparator groups. The applicant referred specifically to the arbitration decisions in Surrey Place Centre and O.P.S.E.U., Loc. 511 (Bark) (Re) (2003) 2003 CanLII 89580 (ON LA), 116 L.A.C. (4^th) 1 (MacDowell), Peel Regional Police Services Board and Peel Regional Police Assn (Re) (2001) 2001 CanLII 62090 (ON LA), 100 L.A.C. (4^th) 73 (Kirkwood), Toronto Police Services Board and Toronto Police Assn. (Re) (2002) 2002 CanLII 79093 (ON LA), 105 L.A.C. (4^th) 352 (Tacon), and Ontario Power Generation v. Society of Energy Professionals (Benefits Grievance) (2008) 180 L.A.C. (4^th) 43 (Burkett).

20The applicant asks that the Tribunal find that she has been discriminated against by being denied family benefits for her spouse and children; or in the alternative, find that, at a minimum, the Board’s policy on internal coordination of benefits is discriminatory with respect to the applicant’s entitlement to coverage for her children.

21The respondents submit that the test for discrimination is as set out in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (“Tranchemontagne”): has there been a distinction made; if yes, is the distinction based on a prohibited ground; and if yes, does the distinction create a disadvantage which perpetuates prejudice or stereotyping? The respondents submit that Moore does not reject this test and that the analysis in Moore was driven by the particular facts in that case, i.e. whether a particular disabled boy was discriminated against when he did not receive extra support to meaningfully access the education system. In comparison, the respondents submit that this case is about a group of people insofar as the applicant is representative of a subset of employees who are married.

22The respondents submit that applying the test in Tranchemontagne, the applicant is unable to establish substantive discrimination. The respondents submit that no distinction has been made. The respondents contend that benefit entitlements are per insured person/claimant and not per employee. Thus, for example, the entitlement to vision care is a maximum of $200/annum for dependent children for every two years (and not $200 per employee for dependent children). The respondents submit that structuring the benefits in this manner is the mechanism by which benefits are equalized since it ensures that every insured claimant gets the same benefit and is subject to the same limitations. The respondents submit that the applicant’s position is premised on a formal equality argument and that by not allowing for internal coordination the respondents have equalized entitlements to members.

23The respondents also submit that any distinction is not based on a prohibited ground. The respondents submit that there is no connection between the treatment of the applicant and her marital status or family status. Instead, the respondents state that, if there is a distinction being made, it is based on the employment of a spouse and whether their employment offers a benefit plan. The respondents submit that there is no nexus between marital (or family) status and the presence or absence of a benefit plan offered by one’s employer citing Toronto Police Services Board at p. 13, and British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation, at para. 86-87.

24The respondents express surprise at, and disagreement with, the applicant’s contention that comparator groups are no longer relevant. Relying on Withler v. Canada (A.G.), 2011 SCC 12, [2011] 1 S.C.R. 396, the respondents submit that, while highlighting concerns with the use of comparators, the Supreme Court of Canada did not eliminate the comparator group analysis but did set out how it should be done properly. In this case, the respondents submit that the reference to the allowing of external coordination of benefits is artificial and indicative of the search for sameness, as opposed to disadvantage that the Supreme Court of Canada cautioned against. The respondents suggest that it is only when the applicant points to an outside comparator that any distinction exists and that this is not a distinction based on marital status (or family status) but rather a spouse’s terms and conditions of employment.

25Finally, the respondents state that the applicant cannot establish a disadvantage that perpetuates prejudice or stereotyping. The respondents submit that the School Board’s failure to coordinate benefits internally does not perpetuate stereotypical application of presumed group characteristics nor infringe human dignity and self-worth nor attach any stigma to being married and an employee of the Board. The respondents submit that this is consistent with the arbitrator’s reasons in Peel Regional Police Services Board, addressing the same issue.

26The respondents emphasize that all of the prior decisions are in support of their position in this case, with the exception of the Sims arbitration award. However, the respondents note that that case does not stand for the proposition that prohibiting internal coordination of benefits is discriminatory. Instead, what was offensive in that case was that one spouse was forced to be a dependent (a condition which is not present in this case).

27In reply, the applicant disputes that there is an “insurance principle” underlying the School Board’s approach such that employees get what they are entitled to. The applicant submits that apart from the offending provision in the Plan Booklet, there is nothing that provides that a child cannot be a dependent of more than one person. Rather, it was the School Board’s unilateral decision to put in the offending provision for reasons unrelated to any insurance principles.

28The applicant submits the offending provision does not equalize the situation as the “like situation” is employees who are entitled to full benefits (in this situation the applicant submits you do not compare two people with one person).

29Finally, in response to the respondents’ submissions on the test for discrimination, the applicant submits that Moore “clarifies” and further develops the law. The applicant submits that it is incorrect to refer to a requirement of perpetuating prejudice or stereotyping since families are not historically disadvantaged and if this was a requirement then family status would not be in the Code. Similarly, the applicant submits that it is inappropriate to consider whether there is a pre-existing disadvantage as again, the applicant submits that marital status would never be in the Code if this was needed.

30Following the hearing, the parties filed further submissions on Quebec (Attorney General) v. A. The applicant submits that the majority decision on the test for discrimination in the case (which the applicant submits is written by Abella J.) supports the Application in that, following Moore and other cases, the test is the three-part test set out in Moore as articulated in MacKinnon. The applicant submits that Quebec v. A establishes that issues such as “perpetuating prejudice or stereotypes” and the use of comparator groups may be helpful, but are not necessary, in determining whether or not the enumerated ground was a factor in the adverse impact.

31The respondents submit that the majority in Quebec v. A (reasons written by LeBel J. with Fish J., Rothstein J., and Moldaver J. concurring) upheld the test for discrimination established in a number of Supreme Court of Canada cases and followed in Tranchemontagne. Further, the majority of the Court made it clear that in order to determine whether a distinction exists, a comparison approach is appropriate. In any event, the respondents emphasize that on any articulation of the test for discrimination, espoused by the Supreme Court of Canada, the failure to provide for internal coordination of benefits does not constitute discrimination because benefit plans are designed around providing benefits to insured persons or claimants, not individual employees, and that not allowing internal coordination ensures each insured person or claimant receives the same coverage.

Analysis and Decision

32The Code prohibits discrimination with respect to employment (s. 5) and services (s. 1). The terms family status and marital status are defined in section 10 of the Code:

“family status” means the status of being in a parent and child relationship;

“marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage;

33The issue before me is whether or not the applicant has been discriminated against on the basis of marital status and/or family status by the respondents in the circumstances of this case. The applicant is unable to separately access family coverage because her husband maintains family coverage under the Benefit Plan and the applicant elected to be a dependent of her husband under that Plan.

34In this case, the parties agreed that the applicant bears the onus of proving discrimination. Further, there appeared to be no dispute that marital status and/or family status need only be one of the factors in the conduct or practice in question for discrimination to be established. However, as is apparent from the above summary, the parties differed on the appropriate test for discrimination and whether discrimination had been established in this case.

35I would not characterize the test in Moore as a “clarification” of the test for discrimination. The test in Moore is consistent with the test for discrimination traditionally applied by the Tribunal and consistently confirmed by the Ontario Court of Appeal (see Shaw v. Phipps, 2010 ONSC 3884, 2012 ONCA 155 (“Shaw”) and Peel Law Association v. Pieters, 2013 ONCA 396 (“Peel Law Association”)). In Moore, the SCC stated at para. 60 that the question in a discrimination case [whether it be about an individual or group] is the same: does the practice result in the claimant suffering arbitrary – or unjustified – barriers on the basis of “his or her membership in a protected group”.

36Further, contrary to the applicant’s submissions, I do not agree that comparators are no longer relevant. In Moore, the SCC disagreed with the comparator selected (only special needs students) and found that the appropriate comparator was all students. The approach used in Moore is consistent with the move away from a formal comparator group analysis that the SCC clarified in Withler.

37In the context of a challenge to government legislation, the Court of Appeal in Tranchemontagne articulated the test for discrimination in somewhat different language from that used subsequently in Moore. However, I do not view the core elements of the test to be different. The Court stated that the prima facie test involves establishing substantive discrimination and that demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping is the foundation of substantive discrimination. The Court went on to state that the goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is incorporated into two stages of the prima facie analysis: i) determining whether the treatment in issue truly creates a disadvantage; and ii) determining whether “the protected ground or characteristic truly played a role in creating the disadvantage”. (see paras. 103 and 104 in Tranchemontagne).

38It is apparent that the core elements include that an applicant establish a disadvantage and that the ground played a role in that disadvantage. While Tranchemontagne elaborated on the element of disadvantage by referring to disadvantage that perpetuates prejudice or stereotyping, I do not view that elaboration to be inconsistent with the reference to a claimant suffering “arbitrary – or unjustified – barriers” in Moore.

39This has been clarified and confirmed in Quebec v. A. In writing for the majority on the test for discrimination, Abella J. stated that, while prejudice and stereotyping are two of the indicia that may help to demonstrate that there is substantive discrimination, they are not discrete elements which the claimant is obliged to demonstrate. Abella J. stated that the Court should engage in a flexible and contextual inquiry into whether a distinction has the effect of perpetuating an arbitrary disadvantage on the claimant because of an enumerated ground (see paras. 325-331).

40In this case, I have concluded that the Application must fail because the applicant cannot establish discrimination on the basis of a prohibited ground.

41It is not clear to me that the applicant has experienced an adverse impact or has suffered a disadvantage. Regardless of whether or not there is an insurance principle behind it, the respondents’ approach to internal coordination does appear to equalize the entitlements these respondents provide to various employees (subject to the obvious differences between single and married teachers). However, even assuming that there is an adverse impact or disadvantage insofar as the applicant is not able to internally coordinate her benefits, I do not accept that this is a disadvantage because of marital status and/or family status.

42It is apparent that coordination of benefits only applies to married employees (including other unions recognized as per the Benefit Plan). To the extent there is a disadvantage it arises because internal coordination is not permitted, whereas external coordination is. While the applicant appeared to suggest that comparators are not relevant, I disagree. In my view, in the context of this Application, it is helpful and appropriate to consider how other married employees are treated in the context of benefit entitlements under this Benefit Plan and collective agreement. I find it appropriate to focus on married employees alone (as distinct from all employees) since only married employees can potentially coordinate benefits. Further, I find it appropriate to focus on the treatment of married employees subject to this Benefit Plan and collective agreement given that the Application is alleging discrimination by these respondents. I do not find it relevant what happens with other school boards since they are not the respondents to this Application and it would appear that benefit entitlements are a negotiated term and condition of employment. It would appear that this accounts for the variation among school boards, including the status quo at this School Board given the position taken in bargaining referenced in Exhibit 4 summarized at para. 13 above.

43Viewed in the context of benefit entitlements and the treatment of other married employees, it is apparent that any disadvantage or differential treatment relates to whether an employee’s spouse is employed by the School Board or externally and not marital and/or family status. Thus, the substance of what a married employee is entitled to varies, depending on whether or not his/her spouse is employed, and if they are employed, if his/her spouse has benefits and if so, at what level benefits are provided by the external employer or insurance company.

44In reaching this conclusion, I have considered that these respondents permit external coordination through language in the Benefit Plan. However, I do not find that by permitting external coordination, there is support for the applicant’s contention that she is being subjected to discriminatory treatment by the respondents on a prohibited ground. As is apparent from the Agreed Statement, external coordination was developed by the insurance industry and includes rules about which policy should pay the primary claim and which should pay the residual claim when two spouses are each enrolled in a separate benefit plan. By including the language, the respondents are incorporating these rules in their Benefit Plan.

45In addition, I have considered the applicant’s argument with respect to B. While I acknowledge that B. establishes that marital status and family status include the identity of a spouse or family member, I do not find that B. stands for the proposition that marital status and family status extends to the terms and conditions of employment of a spouse or family member in circumstances underlying this Application. In B. the complainant was fired because of the fact that his daughter had raised allegations against his employer. The Supreme Court of Canada concluded that that the employer’s automatic attribution of the wife and daughter’s behaviour to the complainant, reflecting stereotypical assumptions, was discriminatory (see para. 60). This is not the case before me. To the extent the applicant has been disadvantaged, it arises only because of the benefit entitlements offered by external employers and not the respondents’ treatment of the applicant based on stereotypical assumptions about her.

46I find that my conclusion is consistent with the majority of precedents addressing the same issue. See, for example, Toronto Police Services Board and Toronto Police Assn. (Re) and British Columbia Public School Employers’ Assn.. At pages 368-369 of Toronto Police Services Board, in a passage cited with approval by the B.C. Court of Appeal (see para. 86-87), the arbitrator considered the argument that the nature of one’s employment is incorporated in the concept of marital status in the context of deciding the same issue as the issue in this case. The arbitrator disagreed concluding:

That is an elaboration of the protection accorded by the Code from discrimination on the basis of marital status (or family status) which I do not view is appropriate. Such a position makes a number of, in my opinion, unwarranted assumptions. It is not controversial that, in many spousal relationships, both spouses work. But there is no evidence as to the incidence of employee benefit plans across the workforce. Indeed, the apparent absence of benefit plans in many employment situations has often been raised as a public issue. I note that, not in taking “notice” of that “fact” in reaching my decision but merely to underscore the absence of firm evidentiary grounds for casting the umbrella of marital status so broadly. There is no nexus between marital (or family status) and the presence or absence of a benefit plan offered by one’s employer.

47I would also agree that based on the evidence and submissions made to me there is no connection between marital status and/or family status and the extent of benefit entitlements offered by one’s employer.

48Accordingly, the Application is dismissed.